AWARD

Vide Interim Award Inti Iabs Sdn. Bhd. (Inti College Sarawak) v. Frank Samuel Agong [2000] 2 MELR 322; [2000] 3 ILR 204, the court found that the claimant had been dismissed without just cause or excuse. Upon the court ruling that the employee had been dismissed without just cause or excuse, the court may either order reinstatement or may decline to do so. In some cases the court has deemed it appropriate to direct that the claimant be re-engaged. On the matter of the proper remedy to be awarded in this case, learned counsel for the college pointed out that three of the college's witnesses, COW1, COW2 and COW3, have testified that the claimant's former post of student affairs senior executive has been abolished. He therefore submitted that it would be impossible and impracticable to order reinstatement of the claimant to his former post which is now non-existent. It was further submitted that it would also not be in the interest of justice to force the college to re-create the same post for the claimant.

The court was of the opinion that it ought to hear the parties further on the issue of what remedy ought to be made in this case. If the court were to hold that the claimant should not be reinstated, there is the issue of compensation to be addressed. There have been recent pronouncements of the court of Appeal on this matter and it would be helpful for the court to be addressed on the same. The parties were thus directed to appear on 12 February 2001 to be heard on the matter. Having heard the submissions of the parties it is the court's view that reinstatement or re-engagement of the claimant in the circumstances of this case would not be the appropriate remedy. The claimant's remedy lies in the payment of monetary compensation.

Monetary compensation consisting of backpay (including benefits) is the usual remedy awarded to the unjustly dismissed workman. If the workman is not reinstated he will usually be awarded a further sum of compensation in lieu of reinstatement. In some cases, the court has deemed it proper to award a lump sum award for loss of employment without recourse to formulating the award on the basis of backpay and benefits. Thus the three heads of monetary awards are: compensation for backpay and benefits, compensation in lieu of reinstatement and compensation for loss of employment.

The court in making a monetary award shall generally do so in accordance with the direction in sub-s. (5) of s. 30 of the Industrial Relations Act 1967, i.e. that it shall act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal form. Until such time as legislation and/or industrial adjudication produces a logical and sensible set of principles for the award and assessment of compensation for unjust dismissal cases, the Industrial court will have to do the best it can to exercise its discretion judicially and judiciously. The court is concerned here with the question what is the measure of the monetary compensation that ought to be awarded to the claimant.

In Talasco Insurance Sdn. Bhd. v. Mohd Anuar bin Abu Kassim[1990] 2 MELR 507; [1991] 1 ILR 169, the court noted the need in awarding compensation to sensibly and sensitively balance the interests of the parties to cases that come before it as follows:

An award of compensation ought to be made in a spirit of fairness following rules of justice and reason and a proper balance has to be maintained between the conflicting claims of the employer and the employee without jeopardising the larger interest of industrial peace and progress and the requirements of social justice.

In the administration of industrial justice, compensation for the workman must clearly consist of a sum which is reasonable. From the point of view of the workman it must be fair and adequate. From the point of view of the employer it must not be excessive and except in certain circumstances, punitive and exemplary in nature.

An unjust dismissal brin